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ELCPartially AllowedConstitutional Petition No 174 of 2011· [2021] KEELC 1540 (KLR)

Nzioki Mbondo v Minster for Lands and Settlement & 2 others; Daniel Kaberia (Interested party) [2021] KEELC 1540 (KLR)

Environment and Land Court
13 October 2021
1,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court revived a case dismissed for delay after two years, ruling that justice in land matters outweighs the delay, but costs went to the opposing party.

What this practically means

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Executive summary

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The ex-parte applicant moved the Environment and Land Court at Meru seeking to set aside the judgment and orders of 29th August 2018 by which his petition was dismissed for want of prosecution. He blamed his former advocates, M/s Muia Mwanzia and Co. Advocates, for inaction and failure to adhere to court timelines, invoking the court's discretion to set aside or review orders and Articles 50 and 259 of the Constitution. The respondents did not oppose, but the interested party objected, showing a history of non-compliance since 2012, consent directions of 21.2.2018 with a default-dismissal rider, confirmed non-compliance before the deputy registrar on 26.4.2018, and dismissal in the applicant's absence on 29.8.2018. The interested party also argued the court was functus officio, the application was brought under the wrong provision, and the two-year delay was inordinate and unexplained. The court applied Order 17 Rule 4 and the Ivita v Kyumbu test, and adopted Pancreas T. Swai on 'sufficient reason' under Order 45. Although it found the delay inordinate and unexplained, with the applicant sharing blame for counsel's failures, and although the interested party had not proved prejudice (no possession or title shown), the court, mindful that this was a land matter and guided by Article 159(3)(d), allowed the application with costs to the interested party. The applicant was directed to prosecute his petition within six months, failing which it would stand dismissed.

Key legal issues

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01

Sufficient reason for review under Order 45

Holding

Blaming former advocates without explaining the applicant's own inaction or the two-year delay does not constitute sufficient reason, but in a land matter the court may extend the benefit of doubt to do substantive justice under Article 159(3)(d)

Reasoning

The court accepted that 'any other sufficient reason' is not confined to grounds analogous with the other review grounds. The applicant blamed his former lawyers for inaction and failure to adhere to timelines but did not disclose what steps he personally took, when he learned of the dismissal, or why he waited two years. The interested party did not demonstrate he had taken possession or obtained title, so prejudice was not proved, while the applicant's prejudice from being locked out was apparent.

p. 3
02

Dismissal for want of prosecution under Order 17 Rule 4

Holding

The dismissal was properly made under Order 17 Rule 4 following consent directions with a rider that default would result in dismissal, and with due notice to the parties

Reasoning

The parties had consented to timelines whose effective date was 21.2.2018, with an express rider that default would lead to dismissal for want of prosecution. Counsel were present on 26.4.2018 when the deputy registrar confirmed non-compliance, and the applicant did not appear on 29.8.2018 when dismissal judgment was read. The court had therefore exercised its discretion judiciously.

p. 2
03

Inordinate and unexplained delay

Holding

A delay of over two years in seeking to set aside the dismissal was inordinate and unexplained, with the applicant sharing blame alongside his former advocates

Reasoning

The applicant took two years after dismissal to file the application. He did not say when he learnt of the dismissal or what remedial steps he took. Even accepting that counsel let him down, the litigant cannot escape blame for such delay and offered no explanation for it.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay
  • 'Any other sufficient reason' for review need not be analogous with the other grounds in the rule
  • A party alleging prejudice must prove it
  • Courts are slow to visit the mistakes of counsel on innocent parties, but a litigant shares blame for unexplained inordinate delay

Court orders

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  1. 1.The application to set aside the judgment and orders of 29th August 2018 is allowed
  2. 2.Costs of the application are awarded to the interested party
  3. 3.The applicant shall prosecute his petition within six months from the date of the ruling, failing which it shall stand dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 4
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 51 Rule 4
  • Civil Procedure RulesOrder XVI rule 5(9)
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 159(3)(d); Articles 50 and 259

Cases cited (8)

  • Francis Origo and another vs James Kumali Mungala
    (2005) eKLR
  • Richard Ndabi Heiyagu vs Independent Electoral and Boundaries Commission and 2 others
    (2013) eKLR
  • Mbogo vs Shah
    (1968) E.A 93 and (1987) E.A 116
  • Alimohammed Haji Suleman Body builders Ltd vs Jivraji & another
  • Unilever Kenya Ltd vs Proctor and Gamble and another
    (2015) eKLR
  • Ivita vs Kyumbu
    (1984) KLR 441
  • Pancreas T. Swai vs Kenya Breweries Ltd
    (2014) eKLR
  • Belinda Murai & another vs Amos Wainaina
    (1978) LLR 2782
Jurisdiction invoked
Order 45 and Order 17 Rule 4 of the Civil Procedure Rules; Articles 159(3)(d), 50 and 259 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nzioki Mbondo v Minster for Lands and Settlement & 2 others; Daniel Kaberia (Interested party) [2021] KEELC 1540 (KLR)", Case Analysis (2021). Constitutional Petition No 174 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1540/eng@2021-10-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.